In a recent article in the Minnesota Bench and Bar, attorney Tom James wrote a nice piece about the relationship between two different family laws in Minnesota and their possible conflict with each other.
As James point out, Minnesota divorce lawyers need to be aware that Minnesota Statute 518B.01, which is the order for protection (OFP) statute, has a direct relationship with many dissolution or divorces cases as the relate to domestic abuse order under Minnesota Statute 518B.131.
Knowing the particulars of the two laws is very important. A mistake can have serious ramifications for family law clients. Sec. 518B.01, the divorce statute relating to domestic orders for protection, is not a “final order”. Rather, it is considered a “temporary order” by the courts. Therefore, the restraining order cannot be immediately appealed and it does not stop the parties from litigating the same issues later.
In contrast, Sec. 518B.01 is a final order. Under this section of the law, if an attorney fails to file a timely motion to amend the court’s finding in the OFP proceeding and/or appeal the OFP, the client is collaterally estopped from challenging the court’s findings in a divorce proceeding. Obviously, this is serious issue.
Furthermore, under both statutes, the OFP cannot be vacated or modified in a divorce proceeding.
James does offer some help. He posits that, if a lawyer wants an order in the dissolution proceeding to “override” the OFP, the lawyer should file a motion to vacate or modify the OFP, which can then be consolidated with the hearing in the dissolution proceeding.
Good advice, there.
-This post was written by Joseph M. Flanders, and Dakota County divorce and family law lawyer.
I have been in an abusive relationship for over 7 years. We have had 2 kids & not married. He has blackend my eyes busted my nose this was before we had kids. Now he makes threats of doing so. When he drinks he gets mad and angry has woke the kids from there sleep. Trying to get at me while they are screaming and crying. Last week he left early from work call me told me he was coming home to beat my ass. I had my 8 month old niece here my sister had to come get her because i was worried about what was going to happen. He has had a restraining orders on him by his exwife and daughter. He broke the restrain in order a number of times going to jail all 5 times. His restraining order with his daughter was for 3 years. She was 15 when she put it on him 18 when she did not renew it. How do I go about getting a restraining order on him and I need to gain custody of my babies? He has not been very easy to work with as far as me getting a job so o am not working at this time and have not since the older child was born in 2010. It WA him that told me we will mot do daycare… Now I feel ot was his way to control and keep me down!!! Please help… I hope this makes sense to you… Thanks for your time. Oh he also tried to suffocate me 2 times while o was pregnant with my child who was born in 2010.. He also 2 weeks ago kicked a chair at my child that was born in 2011 when he dis that he cut this childs toe up… Sorry had to add that the list goes on and on….
I have been in an abusive relationship for over 7 years. We have had 2 kids & not married. He has blackend my eyes busted my nose this was before we had kids. Now he makes threats of doing so. When he drinks he gets mad and angry has woke the kids from there sleep. Trying to get at me while they are screaming and crying. Last week he left early from work call me told me he was coming home to beat my ass. I had my 8 month old niece here my sister had to come get her because i was worried about what was going to happen. He has had a restraining orders on him by his exwife and daughter. He broke the restrain in order a number of times going to jail all 5 times. His restraining order with his daughter was for 3 years. She was 15 when she put it on him 18 when she did not renew it. How do I go about getting a restraining order on him and I need to gain custody of my babies? He has not been very easy to work with as far as me getting a job so o am not working at this time and have not since the older child was born in 2010. It WA him that told me we will mot do daycare… Now I feel ot was his way to control and keep me down!!! Please help… I hope this makes sense to you… Thanks for your time. Oh he also tried to suffocate me 2 times while o was pregnant with my child who was born in 2010.. He also 2 weeks ago kicked a chair at my child that was born in 2011 when he dis that he cut this childs toe up… Sorry had to add that the list goes on and on….my email is kerburb38@gmail.com